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Land Development Code - City of Hudson, Ohio

Chapter 1210    Beneficial Use Determination

Section 1210.01    Purpose

The purpose of this Chapter is to establish procedures and regulations for the provision of relief from substantial economic hardship arising from the application of zoning and other land development regulations to private property located in the City of Hudson. This Chapter is further intended and shall be construed to objectively and fairly review claims by private property owners that any such application of the City's zoning and land use regulations requires appropriate relief, yet preserve the ability of the City to lawfully regulate real property and fulfill its other duties and obligations to people of this City.

Section 1210.02    Findings

The City Council makes the following findings:

  1. To further the public interest in land development, the City has enacted new zoning and other land development regulations applicable to all properties in the newly merged City of Hudson;
  2. In some very limited situations, the application of such zoning or other land development regulations may deny a property owner all reasonable use of his property and consequently effect a taking under either the Ohio or United States Constitutions; and
  3. That to preserve and protect private property rights, an administrative process is desirable that would afford appropriate relief in those instances where zoning or other land development regulations lead to denial of a land development application and create a substantial economic hardship; and
  4. That such an administrative economic hardship/taking relief process would provide Hudson a quick and flexible means to respond to valid economic hardship and taking claims without necessarily incurring the time-consuming and significant expense of litigating such a claim in the courts.

Section 1210.03    Economic Hardship/Taking Standard

For purposes of this chapter, a substantial economic hardship shall be defined as a denial of all reasonable economic use of the property. Upon a finding that the denial of the application has resulted in a denial of all reasonable economic use of the property, Hudson may provide the petitioner with appropriate relief from the zoning or other land development regulations as set forth in this chapter.

Section 1210.04    Economic Hardship/Taking Relief Procedures: Petition & Submittal Requirements

  1. Hardship Relief Petition
    Any applicant for development, after a final decision on its application is rendered by the City Manager, Planning Commission, or City Council, may file a Hardship Relief Petition with City Council seeking relief from the City=s zoning or other land development regulations on the basis that the denial of the application has created a substantial economic hardship, depriving the applicant of all reasonable use of its property.

  2. Affected Property Interest
    The Hardship Relief Petition must provide information sufficient for the City Attorney to determine that the petitioner possesses a protectable interest in property under Article 1, Sections 16 and 19 of the Constitution of Ohio and the Fifth Amendment to the United States Constitution.

  3. Time for Filing Notice of Petition and Petition
    No later than ten (10) calendar days from final action by the  Planning Commission, BZBA, or City Council, or other city review authority on any site plan or other type of zoning application, the applicant shall file a Notice of Petition in writing with the City Council.  Within thirty (30) days of the filing of a Notice of Petition, the applicant shall file a Hardship Relief Petition with the City Council.

  4. Information to Be Submitted with Hardship Relief Petition
    1. The hardship relief petition must be submitted on a form prepared by the City Manager, and must be accompanied at a minimum by the following information:
      1. Name of the petitioner;
      2. Name and business address of current owner of the property; form of ownership, whether sole proprietorship, for-profit or not-for-profit corporation, partnership, joint venture or other; and if owned by a corporation, partnership, or joint venture, name and address of all principal shareholders or partners;
      3. Price paid and other terms of sale for the property, the date of purchase, and the name of the party from whom purchased, including the relationship, if any, between the petitioner and the party from whom the property was acquired;
      4. Nature of the protectable interest claimed to be affected, such as, but not limited to, fee simple ownership or leasehold interest;
      5. Terms (including sale price) of any previous purchase or sale of a full or partial interest in the property by the current owner, applicant, or developer prior to the date of application;
      6. All appraisals of the property prepared for any purpose, including financing, offering for sale, or ad valorem taxation, within the three years prior to the date of application;
      7. The assessed value of and ad valorem taxes on the property for the three years prior to the date of application;
      8. All information concerning current mortgages or other loans secured by the property, including name of the mortgagee or lender, current interest rate, remaining loan balance and term of the loan and other significant provisions, including but not limited to, right of purchasers to assume the loan;
      9. All listings of the property for sale or rent, price asked and offers received, if any, during the period of ownership or interest in the property;
      10. All studies commissioned by the petitioner or agents of the petitioner within the previous three years concerning feasibility of development or utilization of the property;
      11. For income producing property, itemized income and expense statements from the property for the previous three years;
      12. Evidence and documentation of improvements, investments, or expenditures for professional and other services related to the property made during the past three years;
      13. Information from a title policy or other source showing all recorded liens or encumbrances affecting the property; and
      14. Information about use(s) of the property during the three years prior to the application.

    2. The City Manager or the appointed Hearing Officer may request additional information reasonably necessary, in their opinion, to arrive at a conclusion concerning whether there has been a denial of all reasonable economic use constituting a substantial economic hardship.

  5. Failure to Submit Information
    In the event that any of the information required to be submitted by the petitioner is not reasonably available, the petitioner shall file with the petition a statement of the information that cannot be obtained and shall describe the reasons why such information is unavailable.

Section 1210.05    Economic Hardship/Taking Relief Procedures: Determination of Substantial Economic Hardship

  1. Preliminary Determination of Substantial Economic Hardship
    1. Prior to the appointment of a Hearing Officer, and based on a review of documents submitted by the petitioner, the City Council, upon advice of the City Manager and the City Attorney, shall make a determination whether the petitioner has made a prima facie case that the subject property has suffered a serious diminution of value or a denial of all reasonable use that amounts to a substantial economic hardship.

    2. Such preliminary determination shall be made within thirty (30) days of the filing of a Hardship Relief Petition and submission of all information required by the City Manager and City Attorney necessary to make such determination.  Upon such showing of a prima facie case, a Hearing Officer may be appointed and a full review of the hardship petition may proceed.

    3. If upon the advice of the City Manager and the City Attorney, the City Council finds that the petitioner has not made a prima facie case of economic hardship as defined above, the petition for hardship relief shall be denied and no Hearing Officer shall be appointed.

  2. Appointment of Hearing Officer
    The City Manager shall, within thirty (30) days following a preliminary determination of hardship by the City Council, appoint a Hearing Officer to review information by the petitioner, to hold a public hearing to determine whether there is an affected property interest and whether a substantial economic hardship has been created as a result of the final action on the application, and to make a recommendation to the City Council concerning approval or denial of the Hardship Relief Petition.

  3. Qualifications of the Hearing Officer
    Every appointed Hearing Officer shall have demonstrated experience in either development, real estate finance, real estate analysis, real estate consulting, real estate appraisal, planning, real estate or zoning law, or in other real estate related disciplines sufficient to allow understanding, analysis, and application of the economic hardship standard.  Prior to appointment, the Hearing Officer shall submit a statement of no potential or actual conflict of interest.

  4. Notice of Public Hearing
    Within ten (10) days following appointment of the Hearing Officer, written notice of a public hearing shall be published and posted in accordance with Section 1203.12(a) of this Code.  The hearing shall be held within thirty (30) days following the final date of written notice, unless a reasonable extension of time is agreed to by both the City Manager and the petitioner.

  5. Rules for Conduct of the Hearing
    All public hearings conducted by the Hearing Officer to consider an economic hardship petition shall be conducted in accordance with any rules and administrative procedures adopted by the City Council to govern such actions.

  6. Application of the Economic Hardship Taking Standard
    In applying the economic hardship standard in Section 1210.03 above, the Hearing Officer shall consider among other items the following information or evidence:
    1. Any estimates from contractors, appraisers, architects, real estate analysts, qualified developers, or other competent and qualified real estate professionals concerning the feasibility, or lack of feasibility, of construction or development on the property as of the date of the application, and in the reasonably near future;

    2. Any evidence or testimony of the market value of the property both under the uses allowed by the existing regulations and any proposed use; and

    3. Any evidence or testimony concerning the value or benefit to the petitioner from the availability of opportunities to transfer density or cluster development on other remaining contiguous property owned by the petitioner eligible for such transfer as in this Code.

  7. Burden of Proof
    The petitioner shall have the burden of proving that the denial of the application created a substantial economic hardship under the standard provided in Section 1210.03 above.

  8. Findings of the Hearing Officer
    The Hearing Officer shall, on the basis of the evidence and testimony presented, make the following specific findings as part of his report and recommendations to the City Council:
    1. Whether the petitioner has complied with the requirements for presenting the information to be submitted with a Hardship Relief Petition;

    2. Whether the petitioner has a protectable interest in the property;

    3. The market value of the property considering the existing zoning regulations;

    4. The market value of the property under the proposed use;

    5. Whether there exists a feasible alternative use that could provide a reasonable economic use of the property;

    6. The market value of, or benefit accruing from opportunities to transfer density or cluster development on other remaining contiguous property owned by the petitioner eligible for such transfer as provided for in this Code;

    7. Whether it was feasible to undertake construction on or development of the property as of the date of the application, or in the reasonably near future thereafter; and

    8. Whether, in the opinion of the Hearing Officer, the denial of the application would create a substantial economic hardship as defined in Section 1210.03.

  9. Report and Recommendations of the Hearing Officer
    1. The Hearing Officer, based upon the evidence and findings, shall make a report to the City Council concerning the Hardship Relief Petition, which may include a recommendation for steps to be taken to offset any substantial economic hardship.

    2. If the Hearing Officer recommends that the City Council approve the Hardship Relief Petition, then the Hearing Officer=s report shall discuss the type and extent of incentives necessary, in the opinion of the Hearing Officer, to provide an appropriate increase in market value or other benefit or return to the petitioner sufficient to offset the substantial economic hardship.  The types of incentives that the Hearing Officer may consider include, but are not limited to, the following:
      1. A rezoning of the property to a more appropriate classification, issuance of a variance, approval of a development plan, or other appropriate land-use regulatory action that will enable the petitioner to realize a reasonable economic return on the property;
      2. An opportunity to transfer density or cluster development on other property owned by the petitioner within the same zone;
      3. A waiver of permit fees;
      4. Approval of development on some portion of the property; or
      5. Acquisition of all or a portion of the property at market value.

    3. Recommendations for transfer of density or clustering either within the boundaries of the subject property or for transfer of density from the subject property to other property owned by the petitioner shall require a written finding by the Hearing Officer that such transfer and the resulting increase in development density will be compatible with existing developments and land use patterns on properties surrounding the subject property or other property receiving the transferred density.
      1. For purposes of such Acompatibility@ finding, the Hearing Officer shall compare the petitioner's development incorporating the increased transfer density with existing development on surrounding properties, and take into consideration the following factors:
        1. Architectural character;
        2. Building size, height, bulk, mass, and scale;
        3. Building orientation;
        4. Privacy considerations in terms of privacy for prospective residents within the petitioner's development and in terms of privacy protection for adjoining land uses;
        5. Building materials;
        6. Building color; and
        7. When applicable, operations of the petitioner's development project, including but not limited to hours of operation; activities that may generate adverse impacts on adjacent land uses such as noise or glare; location of loading/delivery zones; and light intensity and hours of full illumination.

    4. The report and recommendation shall be submitted to the City Council and mailed to petitioner within thirty (30) days following the conclusion of the public hearing.

  10. City Council Review and Consideration
    1. The City Council shall review the report and recommendations of the Hearing Officer and approve or disapprove the Hardship Relief Petition within sixty (60) days following receipt of the Hearing Officer's report.  Provided, however, that the City Council may extend this period upon a finding that due to the size and complexity of the development or proposal and similar factors that additional review time is necessary.

    2. The City Council may hold a public hearing and provide notice as set forth in Section 1203.12(a) of this Code. Only new testimony and evidence shall be presented at any public hearing held by the City Council.

    3. The City Council may adopt any legally available incentive or measure reasonably necessary to offset any substantial economic hardship as defined in Section 1210.03 and may condition such incentives upon approval of specific development or site plans.

    4. The decision of the City Council shall not become final until it determines the provision of any such relief.

  11. Time Limits/Transferral of Relief or Incentives
    Any relief or incentives adopted by the City Council pursuant to this chapter may be transferred and utilized by successive owners of the property or parties in interest, but in no case shall the incentives be valid after the expiration date of a specific development approval.